| Fiji Islands - Nawaqabuli v Reginam - Pacific Law Materials |
IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION
CRIMINAL APPEAL No. 71 of 1977
Appellant
v.
REGINAM
Respondent
JUDG>JUDGMENT
The appellant was charged jointly with one Lorosio Kadavu. with robbery with violence contrary to section 326 (a) of the Penal Code and was tried by the Magistrate'rt Suva. The particulars alrs alleged that they had used violence against one Waisake Tomu and robbed
him of a watch valued at $30.
According to prosecution evidence Tomu and his wife were driving towards Wailoku when, near a narrow bridge the two accused, with
some other young men, threw stones at his car. When he stopped to demonstrate, the two accused punched him. After the scuffle Tomu
found his watch missing from his wrist.
Towards the end of the prosecution case Lorosio informed the Court that he wished to plead guilty to assault if such a plea were to
be accepted. At the request of the prosecution a charge of assault occasioning actual bodily harm contrary to section 277 of the
Penal Code, with the necessary particulars, was put to Lorosio who pleaded guilty and was dealt with accordingly, receiving a sentence of 12
months' imprisonment.
The trial against the appellant continued on the original charge of robbery with violence.
In his defence the appellant made an unsworn statement to the effect that he had been present at the time of the assault on Tomu but,
instead of taking part in it, he was trying to stop it. He denied assaulting or robbing Tomu. He called, as a witness for the defence,
Lorosio who supported what the appellant had said in his statement.
The issue then became one mainly of credibility. The learned Magistrate rejected the defence version and found as follows:
"I am satisfied from what Prosecution Witness 1 and 2 have told this Court that P.W.1's van was stoned and he was caused to leave
it to speak to a group of men whom he thought responsible. I am satisfied that this Accused, with Accused 1 assaulted P.W.1 and broke
his jaw. However I am not satisfied that there was a deliberate theft of his watch. It may have been taken by these Accused, it may
not, I am in doubt and am inclined to the view that it was lost in the scuffle. I shall give the Accused the benefit of the doubt
in that regard."
The learned Magistrate was quite entitle to make that finding and I see for disturbing it.
He then went on to say:
"However, using the provisions of section 163(1) of Criminal Procedure Code, whilst I find that all the ingredients of Robbery with Violence have not been proved to my satisfaction, I am satisfied beyond a
reasonable Doubt that sufficient ingredients have been placed before me to ground and fully support a charge of Assault Occasioning
Bodily Harm contrary to section 277 of Penal Code. I consider it to be a minor offence of a cognate character to Robbery with Violence. I consider Assault Occasioning Bodily Harm
to be violence without the robbery. I therefore find this Accused not guilty of the offence charged and I acquit him for it, but
I find him guilty under section 163(1) Criminal Procedure Code, supra, for Assault Occasioning Bodily "arm contrary to section 277 and I convict him for that offence."
Section 163(1) of the Criminal Procedure Code provides
"When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes
a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the
minor offence although he was not charged with it."
In the instant case the particulars alleged "robbery" and "use of violence". The learned Magistrate found the
use of violence proved; not the theft of the watch.
The issue of whether an offence is "minor" to the one charged often comes up before the Courts. In my view the test to be
applied is to be, found in the case of Springfield (53 Cr. App.. R. 608 at 610):
"The question accordingly arises as follows. Where an indictment thus charges a major offence without setting out any particulars
of the matters relied upon, what is the correct test for ascertaining whether it contains allegations which expressly or impliedly
include an allegation of a lesser offence? The test is to see whether it is a necessary stop towards establishing the major offence
to prove the commission of the lesser offence: in other words, is the lesser offence an essential ingredient of the major one?, To
take obvious examples, it is impossible to establish larceny from the person without proving a larceny. Similarly one cannot establish
a wounding with intent to do grievous bodily harm without proving as steps in ascending order a common assault, an assault occasioning
actual bodily harm, and an unlawful wounding. Similarly, if robbery with violence had been charged under section 23 (1)(b), this
could not have be on established without proving that a common assault had taken place, and the same would apply if there had been
a charge of assault with intent to rob under section 23 (1)(a)."
Though the statutory provision under consideration in Springfield was slightly different, the test is equally applicable to section 163(1) of the Criminal Procedure Code. Sections 23(1)(a) and 23(1)(b) referred to in the quotation above are identical with sections 326(1)(a) and 326(1)(b) of the Fiji
Penal Code.
Use of personal violence undoubtedly includes "assault". But does it necessarily include occasioning actual bodily harm?
Robbery with violence may be, and sometimes is, committed without any actual bodily harm resulting to the person robbed. In my view,
therefore, the learned Magistrate was entitled, under section 163(1) of the Criminal Procedure Code, to find the appellant guilty only of assault contrary to section 276 of the Penal Code, but not of assault occasioning actual bodily harm under section 277 of that Code.
Conviction of the appellant for that offence is set aside and in its place is substituted a conviction of common assault contrary
to section 276 of the Penal Code. The sentence of 12 months, which is the maximum for common assault, is also set aside and in its place is substituted a sentence
of 9 months' imprisonment.
In passing I must add that the drafting of the charge in this case was extremely careless and slipshod. The statement of offence states
that the charge is laid under section 326(a) of the Penal Code. There is no such section. The correct number is 326(1)(a). Furthermore, though the charge is laid under section 326(1)(a) of the
Penal Code, the particulars alleged follow the language not of that section but of section 326(1)(b). Unlike the case of Springfield (supra), however, both the statement and the particulars of offence in this case specifically allege violence and I do not, therefore,
consider the defects fatal to the charge.
